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Feds lose round in no-fly list lawsuit

By JOSH GERSTEIN

01/22/2014 06:44 PM EST

A naturalized American who claims he was blocked from returning to the U.S. from Kuwait for several days in 2011, Gulet Mohamed, won a round Wednesday in his lawsuit challenging the U.S. Government's no-fly list.

Judge Anthony Trenga of U.S. District Court in Alexandria, Va. rejected the bulk of the U.S. government's motion to dismiss Mohamed's lawsuit, which alleges that his inclusion on the no-fly list violates his constitutuonal right to travel.

"Inclusion on the No Fly List also labels an American citizen a disloyal American who is capable of, and disposed toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public," Trenga wrote, noting likely impacts of a no-fly list placement on possibilities for employment and religious observance.

"In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse," the judge added.

Trenga also rejected the government's arguments that its only obligations to Mohamed, who was born in Somalia but raised in Alexandria, Va., were to allow him into the U.S. once he presented himself at the border.

"The Court concludes that a U.S. citizen's right to reenter the United States entails more than simply the right to step over the border after having arrived there," the judge wrote.

"An individual's inclusion on the No Fly List and the dissemination of that list are accomplished without any judicial involvement or review, and according to a standard of proof that is far less than that typically required when the deprivation of significant constitutional liberties are implicated," the judge wrote. "While the government no doubt has a significant and even compelling interest [in the safety of air travelers], an American citizen placed on the No Fly List has countervailing liberty interests and is entitled to a meaningful opportunity to challenge that placement."

The judge found that the five-day delay in Mohamed's return three years ago didn't amount to a constitutional violation, but that the prospect of future interference in his travels did pose the danger of such a violation. (Mohamed has also complained that he was illegally interrogated by FBI agents in Kuwait before he denied boarding at the airport.)

The Council on American-Islamic Relations, which represented Mohamed in his initial effort to return home and in the subsequent lawsuit, hailed the judge's decision.

"We applaud this decision as a clear rebuke of the government's use of the no-fly list as applied to Americans," CAIR's Gadeir Abbas said in a statement.

A Justice Department spokesman said officials there were reviewing the ruling.

The decision is not a final one in Mohamed's case. Instead, the judge's ruling allows the litigation to proceed to a more substantive phase where Mohamed's lawyers are likely to receive more detailed information about why he was apparently placed on the no-fly list and on what standards are used for inclusion.